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The Center Holds: The Power Struggle Inside the Rehnquist Court

The Center Holds: The Power Struggle Inside the Rehnquist Court

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The Center Holds: The Power Struggle Inside the Rehnquist Court

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Jun 5, 2012


The Center Holds provides an intimate look at who the Supreme Court justices are, how they have made critical decisions, and why, ultimately, the Rehnquist Revolution failed.

Focusing on four key areas of civil rights and liberties—racial discrimination, abortion, criminal law, and First Amendment freedoms—TheCenter Holds provides an in-depth look at the Supreme Court documents that illustrate the battle between the old liberal order and emerging conservative majority, beginning in the early 1980s. James F. Simon, a former Time correspondent and contributing editor, ex-dean of New York Law School, and nationally recognized scholar of constitutional law, examines key decisions on civil rights and civil liberties in a readable, intimate look at some key Supreme Court Cases and includes absorbing descriptions of confidential memos and drafts gleaned from sources from within the court.
Jun 5, 2012

Informazioni sull'autore

James F. Simon is the Martin Professor of Law and Dean Emeritus at New York Law School. He is the author of seven previous books on American history, law, and politics. His books have won the American Bar Association’s Silver Gavel Award and twice been named New York Times Notable Books. He lives with his wife in West Nyack, New York.

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The Center Holds - James F. Simon

A smart, timely book that gets both to the bottom and the inside of what’s going on in the current Supreme Court. Simon has connected the dots and discovered the most important legal story in America today—the failure of the extreme right to overturn long-established fundamental rights.


Jim Simon’s important book offers significant insights not only into the rulings and personalities of the Rehnquist Court, but also into even broader, more fundamental, subjects: the legitimate function of the Supreme Court in our governmental system, and the appropriate balance between individual liberties and community concerns. Interweaving fascinating—and, in many cases, completely new—materials from personal interviews and previously confidential court papers with astute analysis of constitutional decisions and biographical materials, Simon presents a compelling vision of the Court’s special role as the ultimate protector of human rights, for individuals and minority groups, against the ‘tyranny of the majority.’


Also by James F. Simon

The Antagonists: Hugo Black, Felix Frankfurter and Civil Liberties in Modern America

Independent Journey: The Life of William O. Douglas

The Judge

In His Own Image: The Supreme Court in Richard Nixon’s America


Rockefeller Center

1230 Avenue of the Americas

New York, NY 10020

Copyright © 1995 by James F. Simon

All rights reserved, including the right of reproduction in whole or in part in any form.

First Simon & Schuster paperback edition 1999

SIMON & SCHUSTER and colophon are registered trademarks of Simon & Schuster Inc.

Designed by Levavi & Levavi

The Library of Congress has cataloged the Simon & Schuster edition as follows: Simon, James F.

The center holds: the power struggle inside the Rehnquist Court/James F. Simon

p. cm.

Includes bibliographical references and index.

1. United States. Supreme Court—History. 2. Civil Rights—United States—History. 3. Political questions and judicial power—United States—History. I. Title

KF8742.S55 1995


[347.30735]                                                       95-11729


ISBN 0-684-80293-7

0-684-87043-6 (pbk)

ISBN 13: 978-1-4391-4325-4 (eBook)

For Marcia, Sara, Lauren, Tom, Elyse, David, and for my mother, Natalie Simon





1. A Dream Destroyed

2. Five Votes Can Do Anything Around Here

3. Fine Phrases



4. A Bull by the Tail

5. Anyone Who Can Count

6. A Neutron Bomb



7. A Fatal Mistake

8. Guilty as Sin

9. Depreciating Liberty



10. Jefferson’s Wall

11. America, the Red, White and Blue, We Spit on You

12. History Lessons


13. Beyond the Rehnquist Court

Source Notes





Justice William O. Douglas

Court Term: 1939–1975

Justice William J. Brennan, Jr.

Court Term: 1956–1990

Justice Potter Stewart

Court Term: 1958–1981

Justice Byron R. White

Court Term: 1962–1993

Justice Thurgood Marshall

Court Term: 1967–1991

Chief Justice Warren E. Burger

Court Term: 1969–1986

Justice Harry A. Blackmun

Court Term: 1970–1994

Justice Lewis F. Powell, Jr.

Court Term: 1972–1987


Chief Justice William H. Rehnquist

Court Term: 1972–1986 (Associate Justice) 1986-present (Chief Justice)

Justice John Paul Stevens

Court Term: 1975-present

Justice Sandra Day O’Connor

Court Term: 1981-present

Justice Antonin E. Scalia

Court Term: 1986-present

Justice Anthony M. Kennedy

Court Term: 1988-present

Justice David H. Souter

Court Term: 1990-present

Justice Clarence Thomas

Court Term: 1991-present

Justice Ruth Bader Ginsburg

Court Term: 1993-present

Justice Stephen G. Breyer

Court Term: 1994-present


This is the story of a conservative judicial revolution that failed. It was led by the chief justice of the United States, William H. Rehnquist, and actively encouraged by two conservative Republican presidents, Ronald Reagan and George Bush. They hoped to reverse the liberal legacy of the Warren Court and its successor, the Burger Court, which had given the broadest scope in the nation’s history to the civil rights and civil liberties protections of the Bill of Rights and the Fourteenth Amendment. With five Court appointments, and an aggressive litigation strategy developed by their Justice Department attorneys, Reagan and Bush had good reason to think they would succeed.

The numbers alone strongly suggested that the Supreme Court of the United States of the late 1980s and early ’90s would take a radical turn to the right in all crucial areas of civil rights and liberties. By 1988, after the confirmation of Reagan’s third appointee, Anthony M. Kennedy, Chief Justice Rehnquist operated with a working conservative majority: Rehnquist himself, the three Reagan appointees—Sandra Day O’Connor, Antonin E. Scalia, and Kennedy—and Byron R. White, a conservative holdover from the Warren and Burger Courts. Bush’s appointments of David H. Souter and Clarence Thomas put the finishing touches on what conservatives inside, and outside, the Administration expected to be a solid majority that would steer the Court safely to the right into the next century.

But predicting the Court’s direction has always been a hazardous business. In part, this is because the life-tenured justices often find a voice independent of their presidential sponsors once they are securely ensconced on the Court. That independence is encouraged by the Court’s internal decision-making process itself, which is the central focus of this book. A justice’s firm vote in private conference may change as a result of a colleague’s argument put forward in conversation, internal memorandum or draft opinion. That happened many times in the cases discussed in this book. In most instances, the center held largely because liberal justices were able to attract support from their more moderate brethren who refused to join the ideologically committed conservatives on the right wing of the Court.

The cases discussed in this book reveal the justices’ intense internal struggles during some of the most critical moments of the Rehnquist Court. They were selected in four crucial areas of civil rights and civil liberties—racial discrimination, abortion, criminal law and First Amendment freedoms. The book is not meant to be a definitive study of the Rehnquist Court. Instead, it focuses on key decisions that, to a significant degree, have determined the Court’s philosophical direction. In most, but not all, of the cases, there is a clear-cut confrontation between the old liberal order and the emerging conservative majority. Although the cases are divided by topic into separate sections, the justices’ deliberations take place concurrently over the same time period, primarily from the Court’s October 1986 term, the first in which Rehnquist presided as chief justice, through the October 1991 term, the first in which Clarence Thomas sat on the Court.

Part One is devoted to a single case, in which a black woman, Brenda Patterson, charged that she had been harassed and ultimately fired from her job because of her race. The Court’s conservatives, led by Chief Justice Rehnquist, not only rejected Patterson’s racial harassment claim, but threatened to overturn two key civil rights precedents of the Warren and Burger Court eras that had provided broad legal remedies for racial minorities. The Patterson case, then, represented a threshold opportunity for the conservatives to take the Court in an entirely new constitutional direction in the civil rights field.

Part Two begins with the most controversial decision of the modern Court era, Roe v. Wade, and the efforts of the conservatives on the Rehnquist Court to overrule it. The issue was furiously joined by Roe’s author, Harry A. Blackmun, but was ultimately decided by three appointees of Reagan and Bush: Kennedy, O’Connor and Souter. Their secret collaboration, unknown to any of their colleagues, produced a joint opinion in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, which preserved Roe—and stunned Rehnquist and Scalia.

In Part Three, Justice Thurgood Marshall pleads for the life of a death row inmate, Warren McCleskey, whose case came before the Rehnquist Court three times between 1986 and 1991. This part, which follows the conservative turn of the Court in criminal cases, also reveals the private deliberations and many changes in the positions of the justices in the case of convicted murderer Oreste Fulminante. Fulminante’s case raised serious constitutional issues about the admissibility of a coerced confession into evidence and gave the chief justice his long-awaited chance to overturn a venerable Court doctrine mandating the reversal of any conviction in which a coerced confession had been introduced at trial.

Part Four focuses on First Amendment issues in which the Reagan and Bush Administrations made a major effort to convert their political successes into constitutional victories. Both Reagan and Bush had encouraged the increased use of religious symbols and traditions in public life; their Justice Department attorneys, in turn, attempted to persuade the Court to abandon an important series of modern Court precedents that drew a clear constitutional line between church and state. As occurred in the Casey decision, the three conservative centrists—Kennedy, O’Connor and Souter—clung to the center and frustrated the plans of the chief justice and his colleagues, Scalia and Thomas. The other First Amendment cases covered in the section deal with the emotional issue of whether the Constitution’s protection of speech extends to flag-burning, which was defended as symbolic political expression. President Bush, who had made patriotism a major issue in his 1988 presidential campaign, offered his view, backed by a proposed constitutional amendment—flag-burning should be punished. But the justices did not take positions as predictable on the issue as did the president.

Leading the conservative charge in all of the cases was Chief Justice Rehnquist, who was appointed to the Court by President Richard M. Nixon in 1971 and quickly earned the reputation as the most outspoken conservative on the Court in more than a quarter of a century. As associate justice and later as chief justice, he consistently supported government regulations of individual liberties and rejected the civil rights claims of racial minorities.

His most reliable supporter among pre-Reagan appointees was Byron White, who had been named to the Court by President John F. Kennedy in 1962. White owed his appointment, in part, to his effectiveness as Robert Kennedy’s deputy attorney general in enforcing the nation’s civil rights laws with stern, understated authority. On the Court, White retained his sternness but little of the Kennedy Administration’s liberal spirit. Instead, he wrote sharp dissents to many of the Warren and Burger Courts’ most expansive libertarian decisions.

President Reagan’s first appointee, Sandra Day O’Connor, had been a law school classmate of Rehnquist’s at Stanford. Although not as rigidly conservative in her ideology as Rehnquist, O’Connor frequently supported government regulation of civil liberties, was openly critical of Roe v. Wade and opposed liberal interpretations of federal laws and the Fourteenth Amendment that provided broad legal remedies to racial minorities.

Antonin Scalia, appointed to the Court by Reagan the same day in 1986 that Rehnquist was elevated to the chief justiceship, championed a strong conservative ideology that matched well with Rehnquist’s. With supreme confidence in his ability to defend his views, Scalia was eager to take on all comers in the privacy of the justices’ conferences, in open court and in his uncompromising judicial opinions.

The Reagan Administration was confident that it had provided Chief Justice Rehnquist with the crucial fifth vote for his conservative majority with the appointment of Judge Anthony Kennedy of the U.S. Court of Appeals for the Ninth Circuit. Kennedy’s name had surfaced after the bruising, unsuccessful confirmation fight over Judge Robert Bork. Although he was no ideologue, Kennedy exhibited a steady, cautious conservative record as a federal appeals judge.

The challenge to the Court’s diminishing liberal wing after Kennedy’s confirmation was daunting. But led by one of the modern Supreme Court’s most influential liberals,* Justice William J. Brennan, Jr., it was by no means a lost cause. Through the 1970s and most of the ’80s, Brennan had, improbably, continued to mold and preserve majorities for his expansive constitutional vision of civil rights and liberties on an increasingly conservative Court.

Steadfastly supporting Brennan was the Court’s first African-American, Thurgood Marshall. A legendary civil rights attorney before his Court appointment by President Lyndon B. Johnson in 1967, Marshall continued to argue on the Court that the justices were obligated to provide broad constitutional protections to racial and other minorities in American society.

The third member of what became the liberal opposition to the Rehnquist Court’s conservatives was Harry Blackmun. Appointed by President Nixon in 1970, Blackmun came to the Court with a fine legal reputation as a trusts and estates attorney in his native Minnesota and later as a moderately conservative judge on the U.S. Court of Appeals for the Eighth Circuit. But Blackmun shocked the nation, and his sponsors, by writing the Court’s opinion in Roe v. Wade. After Roe, Blackmun gradually shifted to the liberal side of the Court; by 1994, his last year on the Court, Blackmun frequently articulated the most liberal position of any justice on a wide range of civil rights and liberties issues.

The final member of the group opposing the Rehnquist Court conservatives, John Paul Stevens, had confounded a media eager to place the justices into neatly defined categories since his appointment by President Gerald R. Ford in 1975. Stevens’s approach to constitutional law defied judicial labels. But the more assertive conservatives on the Rehnquist Court became, the more Stevens reacted with his own spirited opinions, usually aligned with those of his liberal colleagues.

After Brennan’s retirement in 1990 and Marshall’s a year later, President Bush appeared to solidify the conservative majority with two appointments. Little was known about his first appointee, David Souter, who had toiled quietly on the trial and state appellate courts in New Hampshire. The same could not be said for Bush’s second appointee, Clarence Thomas, whose aggressively conservative political pronouncements while chairman of the Equal Employment Opportunity Commission in the 1980s had endeared him to both Reagan and Bush.

Three other justices are important to this story. The first is Justice William O. Douglas, appointed to the Court by President Franklin D. Roosevelt in 1939, whose lobbying among his colleagues during their deliberations in Roe v. Wade influenced the outcome. Finally, Justices Ruth Bader Ginsburg and Stephen G. Breyer, named to the Court by President Bill Clinton, became the first appointees by a Democratic president in a quarter century, interrupting a succession of ten Republican-appointed justices. Although it is too early to predict exactly where Ginsburg and Breyer will fit in ideologically, their prior records of moderation as federal appeals court judges virtually assure the denouement of the conservatives’ revolution.

What follows is an in-depth account of the justices on the Rehnquist Court as they fight for majorities in the privacy of their conference room and in their chambers, in their confidential internal memoranda, notes and letters, and in unpublished draft opinions. It is not always a tidy process, nor do the individual justices always act wisely or with good humor. But the justices’ intensity as they argue—sometimes diplomatically, other times with bare-knuckled determination—underscores the importance of their work. For the outcome of their struggles, as they well knew, would profoundly affect the future of the Court and the nation.



What the Court declines to snatch with one hand, it steals with the other.… The Court’s fine phrases about our commitment to the eradication of racial discrimination seem to count for little in practice. When it comes to deciding whether a civil rights statute should be construed to further that commitment, the fine phrases disappear, replaced by a formalistic method of interpretation antithetical to Congress’ vision of a society in which contractual opportunities are equal.

From the unpublished dissent of


in Patterson v. McLean Credit Union (1989)



The case of Brenda Patterson, a black woman who charged that she had been harassed and subsequently fired from her job with a North Carolina credit union because of her race, was argued before the Rehnquist Court in February 1988 and reargued eight months later. The fact that the justices selected the case for oral argument in the first place, from more than five thousand petitions, suggests that Brenda Patterson had raised an important legal question that the Court wanted to resolve. After reading the thick legal briefs from the opposing sides in the case and hearing a full hour’s oral argument, the justices requested a second set of briefs and arguments.

As is true of most important decisions of the Supreme Court of the United States, the case of Patterson v. McLean Credit Union began quietly, when Brenda Patterson went to a lawyer after she was dismissed from her clerical job at the McLean Credit Union in Winston-Salem, North Carolina. Patterson told attorney Harvey Kennedy that her white supervisor had continually harassed her during her ten-year employment at the credit union, had given her demeaning tasks (dusting, for example) not assigned to white workers, and had denied her training and promotion opportunities that were offered to white employees with Patterson’s skills.

Kennedy brought a lawsuit on behalf of Patterson against the credit union in federal district court in North Carolina, charging racial harassment, failure to promote and, finally, the illegal discharge of Brenda Patterson in violation of the nation’s first civil rights statute, the Civil Rights Act of 1866. That post-Civil War statute gave blacks the same rights to make and enforce contracts … as is enjoyed by white citizens.

There were several pragmatic reasons for Harvey Kennedy to bring the Patterson suit under the 1866 law rather than Title VII of the Civil Rights Act of 1964. Procedurally, the older statute offered Patterson advantages, including a jury trial. Most importantly, the 1866 law provided Patterson with a substantially greater monetary remedy; she could sue the McLean Credit Union for back pay beyond the two-year limitation of Title VII as well as for punitive damages, which were barred by the 1964 statute.

The federal district court judge rejected Patterson’s argument that racial harassment could be the basis for a claim under the 1866 statute, and a jury then ruled against Patterson on her promotion and discharge claims. Patterson later lost her appeal in the U.S. Court of Appeals for the Fourth Circuit, setting the stage for the first Supreme Court argument on February 29, 1988.

Two months after the Court first heard arguments in the Patterson case, a narrow Court majority made up of its five most conservative members (Rehnquist, White, O’Connor, Scalia and Kennedy) created panic among civil rights attorneys by requesting reargument in Patterson to focus on the issue of whether a critical twelve-year-old civil rights precedent, Runyon v. McCrary, should be overruled. Runyon had held that the 1866 civil rights statute applied to racial discrimination by a private employer as well as to official acts of racial discrimination by state governments. If the Court’s conservatives carried through on their threat to reverse Runyon, private employment discrimination could be cut off from the statute’s coverage.

The Rehnquist Court announcement was perceived by the civil rights community as not only a threat to Brenda Patterson’s case, which was bad enough, but to one of the foundation decisions in civil rights in which the Warren and Burger Courts had provided broad legal protection for racial minorities over three decades. Most of the amicus curiae (friend of the court) legal briefs filed by interested parties that flooded into the justices’ chambers during the summer of 1988—not just from civil rights organizations, but also from Reconstruction-era historians, constitutional scholars, congressmen and state attorneys general—urged the Court to preserve Runyon.

When the justices heard the second argument in Patterson on October 12, 1988, the case was already being heralded by the media as the most important of the term. Patterson not only presented an unusual claim of racial harassment in the workplace, but, more broadly, offered the Rehnquist Court its first serious opportunity to chart a new course in civil rights law.

The tension among observers and lawyers in the courtroom was palpable during the second Patterson oral argument, and that tension later carried over to the justices, who fought over the resolution of the Patterson case for the next eight months. For Patterson presented the Court’s conservatives with the chance to exploit their majority and pursue a very different civil rights path from the one that had been taken by the Court for more than three decades. Civil rights progress during that period was often measured by decisions of the modern Supreme Court, which had become the crucial American institution in the civil rights revolution, inspiring, nurturing and finally demanding the elimination of racial discrimination in the United States.

Many of those civil rights decisions had been written by the Court’s liberal leader, Justice William Brennan. But with the Patterson challenge, it appeared that the Court’s leadership, and Brennan’s, might be relegated to no more than a historic relic. By the late 1980s, the nation’s political mood had turned decidedly more conservative, and so had the Supreme Court, led by Chief Justice Rehnquist. The struggle within the Court over Patterson, therefore, assumed large political, as well as judicial, overtones. If the chief justice succeeded in achieving his conservative goals, the Court would no longer offer the broad-based legal remedies that had been crucial to modern civil rights reform.

In 1972, the year that Brenda Patterson was hired by the McLean Credit Union, her new job had been a cause of celebration for Brenda and her husband, Marshall Patterson. Marshall then worked as a driver for the United Parcel Service in Winston-Salem, North Carolina, and Brenda had come home with the exciting news that she had just been offered the position of accounting clerk by McLean. The second income was important to the Pattersons, but working for the credit union of the McLean Trucking Company was a source of particular pride to Brenda. She and her husband had often driven by the McLean building on Waughtown Street in Winston-Salem, and Brenda had told Marshall that she wanted to work there someday.

A graduate of Winston-Salem State University and a former part-time elementary school teacher, Brenda Patterson accepted the job as an accounting clerk with the expectation that she would advance to more interesting and lucrative positions within the company. One of only ten general employees, Brenda was confident that she would make a satisfying career at McLean. It was a happy time for her, Marshall Patterson remembered, because a dream had come true.

When she was hired, Brenda Patterson was the only black working at the credit union. At her initial interview with her supervisor, Robert Stevenson, she had been warned that she was going to be working with all white women … and that probably they wouldn’t like me because they weren’t used to working with blacks. Stevenson himself had had no experience working with blacks.

After only a few months at McLean, Brenda Patterson’s initial joy dissipated. With increasing regularity, she came home to tell her husband that her supervisor was piling work on her but not on his white employees. She also told Marshall that her supervisor would stare at her for several minutes at a time, and this made her nervous and unable to concentrate on her work. Brenda said that she was singled out for criticism in staff meetings while white employees were criticized in private.

It seemed to Brenda Patterson that she was regularly asked to help white clerical workers but that nobody helped her. Patterson noticed that she alone among McLean’s credit union employees was asked to sweep and dust the office. After she complained about the amount of work she was given, Brenda was told by Robert Stevenson that blacks are known to work slower than whites by nature. Later she remembered that Stevenson made the same point by telling her that some animals [are] faster than other animals.

As the work piled up and criticism by her supervisor intensified, Brenda Patterson’s health began to deteriorate. Marshall Patterson watched his wife, whom he described as a pleasant, happy person, transformed into a nervous and depressed spouse who frequently burst into tears when she told him about her difficulties at work. She felt humiliated, downgraded, because she didn’t feel that she was being treated as the other girls were treated, Marshall recalled. Despite her difficulties, Brenda continued to work at McLean, hoping that conditions would change.

One Monday in July 1982, Brenda reported to work as usual. She received written notice during the day that she had been laid off, after ten years of service.

Well, is this it? You’re just laid off like that? Marshall asked when his wife came home.

Yes, she replied.

Well, maybe they’ll call you back in a week or so, Marshall said, reassuringly.

The callback never came.

In 1984, Brenda Patterson’s lawsuit was heard in federal district court in North Carolina, but her best hope for success was quickly dispelled by the trial judge, even before her case went to the jury. The judge rejected Patterson’s argument that her claim of racial harassment was covered by the 1866 civil rights law, ruling that such harassment on the job, even if proven, was not prohibited by the language of the statute. The judge, having thrown out Patterson’s racial harassment charge, instructed the jury that Patterson was required to show that she was better qualified than the white employee who was promoted to the job that Patterson believed she deserved. The jury then ruled against Patterson on both her promotion and discharge claims, and the U.S. Court of Appeals for the Fourth Circuit affirmed the lower court decision.

Harvey Kennedy, who had argued Patterson’s case in both the trial and appeals courts, turned the case over to attorney Penda Hair of the NAACP Legal Defense Fund,* who petitioned the Supreme Court to hear Patterson’s appeal. The justices granted the petition, and the case of Patterson v. McLean Credit Union was placed on the Court’s docket for the October 1987 term.†

On his fourth day as an associate justice of the Supreme Court of the United States, Anthony Kennedy (who had been nominated to the Court by President Reagan soon after Judge Robert Bork, Reagan’s first choice to replace Justice Lewis F. Powell, Jr., failed to be confirmed by the Senate) listened with his brethren to attorney Penda Hair present the first argument to the justices on behalf of Brenda Patterson. Mr. Chief Justice, and may it please the Court, Hair began at 10:57 A.M. on February 29, 1988. For the next twenty-seven minutes (she reserved three minutes for rebuttal), Hair attempted to persuade the justices that the McLean Credit Union had violated Brenda Patterson’s rights under the Civil Rights Act of 1866 by subjecting her to racial harassment during her ten years at the company, as well as passing over her for promotion because of her race in favor of a white employee and later discharging her.

Hair spent virtually her entire thirty minutes of oral argument attacking the notion that the 1866 civil rights statute’s contract provisions, which prohibited racial discrimination in the making of a contract, failed to cover the harassment that Brenda Patterson claimed in her lawsuit. Under that rule of law, Hair asserted, a black worker can get a job but the black worker can be forced to pay a very high price for that job in loss of dignity. The employer can say to that worker, ‘We’ll hire you, but only if you submit to conditions of employment in which you are humiliated and demeaned because of your race.’ It is our position that that type of condition of employment is exactly the badge of inferiority that the Thirteenth Amendment and Section 1981 [the designation of the relevant provisions of the 1866 statute in the United States Code] were designed to prohibit.

Hair continued, It seems obvious that a black worker who is forced to pay the price of stigma and humiliation in order to be able to perform the contract that she has a right to enter into, has not been afforded the same right to make and enforce a contract. The black worker’s exercise of her right to make and enforce a contract has been burdened because of her race.

Chief Justice Rehnquist was the first to interrupt Hair’s argument, questioning the attorney’s assertion that racial harassment on the job was covered by the statute. Well, I don’t think that’s crystal clear, Ms. Hair, said Rehnquist, that the consequences like you’re talking about, bad as they may be, necessarily implicate the right to make or enforce a contract. That certainly isn’t an inclusive term.

I would submit, Hair responded, that the right to make and enforce a contract has to include the right to perform that contract free from racial discrimination. If the right to make and enforce a contract is going to have any meaning, it must include the right not to be burdened in the exercise of your right to make and enforce a contract free of racial discrimination.

Again, Rehnquist challenged Hair. Well, supposing, Ms. Hair, he said, that an employer hires a black person for $50,000 and the black person later comes in and says, well, if I’d been white, they would have paid me $55,000, so they violated 1981. Do you think if the black employee can prove that, that’s a cause of action under 1981?

Yes, I do, Hair replied without hesitation. It’s racial discrimination in pay.

Later in her oral argument, Hair was closely questioned by Justices Scalia, White, O’Connor and Kennedy. Did the language in the 1866 statute—to make and enforce contracts—specifically cover Patterson’s situation? Instead of seeking redress in the federal courts, should Brenda Patterson have sued for breach of contract in the state courts of North Carolina? Or in federal court under Title VII of the Civil Rights Act of 1964?

Throughout the interrogation, Hair held to her argument that the racial harassment charged by Patterson was exactly the kind of conduct that the Reconstructionist Congress in 1866 intended to reach by its civil rights statute and, further, that her interpretation was consistent with modern Court decisions interpreting the legislative history and intention of the statute’s framers.

When it was his turn to speak to the justices, H. Lee Davis, Jr., attorney for the McLean Credit Union, argued that Brenda Patterson’s claims were unsubstantiated in fact but, in any case, could not succeed under the precise contract language of Section 1981. If Brenda Patterson had a legitimate grievance, Davis maintained, she should have sought redress under Title VII of the 1964 Civil Rights Act or, alternatively, under North Carolina contract law.

During Davis’s argument, Kennedy asked the question whose answer would prove crucial to his initial vote, at the justices’ conference, in support of Brenda Patterson’s claim—and to his later reversal. Assume, Kennedy told Davis, that a contract is made in good faith and in non-discriminatory terms, but once its performance begins, highly onerous conditions are imposed. Are there no conditions that are so onerous that 1981 would not be implicated? With his question, Kennedy suggested that racial harassment on the job might be so egregious and pervasive (as Patterson had claimed) that it effectively undercut the making of an employment contract, even if the employer had originally entered into the contract in good faith.

Davis responded to Kennedy’s question by arguing that the language of the statute barred any coverage of conditions, such as racial harassment on the job, that were separate and independent of the initial making of the contract.

Throughout his argument, the McLean Credit Union’s attorney concentrated on technical distinctions in the law which, finally, was too much for Thurgood Marshall. After Davis contended that no evidence had been submitted to the jury that proved his client had failed to promote Brenda Patterson because of her race, Marshall interrupted.

Mr. Davis, you talk of no evidence, said Marshall. What about this flat statement [in the trial record] that negroes are just slower than everybody else? What do you do with that?

Justice Marshall, Davis responded, I dare say that there are few of us in the world who have not had a prejudiced thought or made a prejudiced comment, whether the prejudice may be racial, sexual or religious or some other basis.

Marshall persisted. What do you do? he asked. Just ignore it [the evidence]?

No, sir, I don’t think you ignore it, Davis said. But the attorney noted that the statement that negroes are just slower was challenged by the defense at trial, and in any

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